Here I want to presenet the shorter version of phd thesis written by me for my client who wrote me with the need to buy phd thesis in law quickly. So wish you good reading in The Constitutionality of State and Local Governments to Establish Sanctuary Jurisdictions

Introduction

In the recent past, legal controversy surrounding the application of the immigration law across the federal, state and local tiers of the government has widened. The decision taken by the American Attorney General (AG) to sue the state of California for the passing of three laws that limited cooperation between the state and the federal immigration agents supports the position. The AG considers that states, such as California, are preventing the federal agencies from enforcing the law. On this basis, the paper explores three issues, namely: whether state and local governments can declare sanctuary status legally for the individuals who are in the US illegally, thus refusing to cooperate with the federal government; whether the US President has the authority to deny federal grants to sanctuary states; and whether the US President, under executive power, can enforce federal regulations and executive orders on the deportation of aliens within the country. This paper holds that state governments cannot declare sanctuary status to protect aliens; the President lacks legal backing to direct funding restrictions to local authorities that deliberately contravene 8 U.S.C. 1373; and the President holds limited control to ensure that both state and local governments abide by the executive orders.

Sanctuary Status

Thesis Statement

Legally and constitutionally, local and state governments cannot declare sanctuary status for the aliens, and refuse to help the federal government in enforcing the law. Under the provision, 8 U.S.C. 1373, the federal government holds the authority regarding how state and local governments respond to the issue of sanctuary status.

Some states, such as California and other liberal States, have prosecuted their officials adjudged that they have assisted the federal government in achieving its goals. However, a critical review of laws on sanctuary indicates that such declarations as well as prosecutions are unconstitutional.[footnoteRef:1] For instance, it is imperative to refer to Article 1 Section 8.4 of the US Constitution. Under this law, the Congress has rights to set a uniform rule regarding naturalization. On this basis, a state or a city that establishes a law or a rule is in violation of the Constitution. Precisely, states or cities have no jurisdiction over immigration policy. Consequently, when states or cities purport to create laws on the issue of immigration, they are in contravention of the US Constitution. [1: Robert Duchemin. The Illegality of Sanctuary Cities – A Constitutional Perspective, tallahasseereports.com (2018).]

In furtherance of the above argument, reference is made to Section 2 of Article 1, known as the supremacy clause. The provision states: “This Constitution and the Laws of the United States which shall be made in Pursuance thereof… shall be the Supreme Law of the Land; and the Judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.” The above excerpt supports the view that the Constitution is the supreme law. This is in line with many other jurisdictions, especially those from the Commonwealth. Moreover, rulings across the state and other countries globally have held that all the acts of parliaments or others laws that are inconsistent with the Constitution become null and void. In essence, any law that contradicts the Constitution is devoid of substance. Based on this position alone, the sanctuary status propounded by the liberal states cannot stand the legal tests.

Yet still, it is worthwhile to indicate that in this regard, one should refer to Article 4 Section 3. It states that, all officers from state legislatures, judicial offices and executive either serving the federal or state governments, are bound by the oaths taken in concession that they will protect the US Constitution. Based on the provision, all officers of the government pledge to honor and support the Constitution, as the primary basis for holding the offices that they occupy. If this rule of law is adhered to, the officers of the states that claim sanctuary status would be hard-pressed to justify their continued occupancy of the offices whose legal basis they dispute.

In the case involving the city of Philadelphia against Jeff Sessions, the Attorney General of the United States is insightful regarding the issue under consideration.[footnoteRef:2] On issuing a preliminary injunction, the court inferred that the city was in “substantial compliance” with the law (8 U.S.C. § 1373). The position was largely attributable to the idea that the city never restricted the sharing of information on the issue of illegal immigrants with the Immigration and Customs Enforcement (ICE). In the final ruling, the court held that the city was in contravention of the above law because the failure to share information on the release of aliens undermined the ICE efforts in apprehending criminal aliens. Further, the court averred that, public and ICE agents’ safety was put into jeopardy as a result of the release of criminals into the city’ streets. [2: City of Philadelphia v. Sessions U.S. Dist court, 1. LEXIS 40699 (US District court) (2018).]

Reference to the history of the USA can also shed light on the debate about the sanctuary status of states and cities. In this regard, it is necessary to refer to the events taking place before the Civil War. Then, it is unclear as to what would have occurred if the state governments officials had failed to support the US Constitution. In an effort to bridge the gap in law, the 14th Amendment was introduced.[footnoteRef:3] In particular, according to Section 3 of the law, [3: Robert Duchemin. The Illegality of Sanctuary Cities – A Constitutional Perspective, tallahasseereports.com (2018).]

No person shall . . . hold any office . . . under any state, who, having previously taken an oath as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies of the same . . .

This is yet another demonstration that those who swear to enhance the issue of sanctuary states are violators of the law, and must not continue serving in the country’s civil service. Thus, it is evident that the above sections of the country’s supreme law demand that all executive, legislative and judicial officers working at different governmental bodies owe their support to the Constitution. Upon violation of the oath, such officers must cease holding public offices. In other words, supporting the sanctuary status equates to open rebellion or disobedience to the Constitution.

Antithesis

States and local governments might declare sanctuary status for aliens and refuse to assist the federal government in enforcing the law. The US Constitution allows each tier of the government to take charge of certain aspects of governance. For instance, whereas the federal government is in control of such matters as foreign affairs and national security, state and local governments have power to run their routine operations.[footnoteRef:4] If immigrants are viewed as a component of the internal state affairs, then the federal government ought to interfere with the issue of immigration and allow the states to make their independent choices. [4: Harald Bauder, Sanctuary Cities: Politics and Practice in International Perspective, 55 International Migration 2, 15 (2017).]

Under Section 1373, the federal government can commandeer state governments by compelling to enforce the given laws. It, however, seems that the policies of this nature are in violation of the 10-th Amendment. In the case Printz v. United States, Justice Antonin Scalia observed that, the anti-commandeering doctrine borders on preserving states’ independence in terms of political grounds. Therefore, it is obvious that directives, such as those on the sanctuary status, imply taking away the powers bestowed on the states by the Constitution. This would then appear that federal law contravenes the 10-th Amendment, in so far as it tries to force state officials to provide information on any assistance to aliens. In the same way, it is evident that under Section 1373, the federal government seeks to take control of the officials from the State governments.

The acts by sanctuary states do not amount to the obstruction of law enforcement. While filing the case against California, Sessions were adamant that the federal government was not seeking states involvement in prosecuting the aliens. On the contrary, the Attorney General insisted that the federal government wanted sanctuary states to cease active obstruction of the enforcement of the federal laws. Consequently, the issue of concern is that the sanctuary states are committing an illegality by blocking or undermining attempts by the top government tier from enforcing the law. From the very beginning, it is evident that even the sanctuary states do not contest the citizenship problem surrounding some immigrants. Hence, it appears prudent that such states should, at least, allow ‘the wheels of justice’ to roll without any interferences. However, the observation by the Sessions fails the legal test, since the states have simply refused to comply with federal requests for information as such compliance would equate to the subversion of state policy on immigration.

Synthesis

States and local governments need to find a unanimous decision on the problem of aliens. Without doubt, the issue of sanctuary states has drawn a lot of controversy. Whereas states have insisted on being left to take control of the issue, the federal government has also claimed the mandate.[footnoteRef:5] Given the ruling of the court in the case of the City of Philadelphia and the AG of the US, it is evident that security is an overlapping function. Most importantly, the federal government has the mandate to secure the nation’s security. Since allowing the cities or states to take charge of the matter would undermine the federal governments’ role of protecting the country, and violate the US Constitution, states and local governments cannot declare sanctuary status for aliens, and refuse to assist the federal government in enforcing the law. [5: Lore Collingwood, Benjamin Gonzalenz, and Stephen Omar El-Khatib, : Sanctuary Cities Do not Experience an Increase in Crime, The Washington Post (2016).]

The principal idea is that the issue of aliens borders on immigration policy, and given that such matters fall under the functions of the federal government, states lack a legal basis to object to the former’s request for cooperation. In addition, although Section 1373 seems to accord the federal government to issue specific commands to states, the 10-th Amendment does not permit such overtures, in so far as, they seek to interfere with the independence of other governmental authorities. Taking a broad perspective of the 10-th Amendment would lead to the conclusion that states can adopt the sanctuary status; however, immigration laws fall under the control of the federal government, and for this reason, states cannot declare this status.

Grants to States

Thesis

The President of the United States has no legal backing to deny those states or local authorities that deliberately refuse to observe 8 U.S.C. 1373 (sanctuary jurisdictions) the right to benefit from the federal grants. Consequently, the federal government cannot deny grants to states because of their failure to comply with an executive branch directive. Only procedural and rational orders enjoy legal backing.

Under the Byrne Memorial Justice Assistance Grant Program (JAG), the federal government apportions some funds to the states every year. In 2017, the AG attached the release of the funding to compliance with federal regulations.[footnoteRef:6] Based on the ruling of Bauder case, the federal government does not enjoy the authority on the dispersal of funds and thus cannot deny funding to the states or local governments. Other cases, such as the County of Santa Clara v. Trump, et al. and the City of Seattle v. Trump, have led to the same perspective.[footnoteRef:7][footnoteRef:8] [6: Harald Bauder, Sanctuary cities: Politics and practice in international perspective, 55 International Migration 2, 15 (2017).] [7: City of Seattle v. Trump, U.S. Dist. Court, 1. LEXIS 103610 (US District court) (2017).] [8: County of Santa Clara v. Trump, et al., No. 3:17-cv-00574-WHO (N.D.Cal.) (2017).]

Based on the American system of government, the Congress has the powers to control the distribution, allocation and expenditure of resources within the state. Subsequently, cities and states determine the usage of their resources.[footnoteRef:9] Based on this fact, the executive has limited, if any authority over the determination of state or city expenditure. It is obvious that the executive lacks the authority to block the award of grants to cities or states that pass sanctuary laws on the issue of aliens. Although the Constitution envisages sharing functions and responsibilities in a harmonious manner, its framers do not contemplate a scenario, where one tier of government seeks to usurp the power of another. Thus, the position faults the attempts by the Trump administration to determine and influence the distribution of grants since, in this case, the executive is openly undermining the Congress, a body that reserves the mandate of resource allocation. Moreover, such overtures are against the basic principles of sound federalism. [9: Bier David. Should Sanctuary Cities Receive Federal Funding? Inside Sources (2018).]

As part of the efforts to lay grounds for the refusal of extending grants to the dissenting states and cities, the US Attorney General cited safety as the basis upon which the idea rests.[footnoteRef:10] For a number of observers, such a directive is flawed since only the Congress enjoys the powers on the funds spending or adoption of conditions to guide expenditure. What is more, the safety argument falters since the executive does not demonstrate how the denial of funding to the states would lead to its improvement. [10: Bier David. Should Sanctuary Cities Receive Federal Funding? Inside Sources (2018).]

History also supports the idea that the enforcement of immigration laws has no correlation with the issuance of grants. The grant program in question is not dependent on the observance of state government’s compliance with the federal laws. While creating the JAG program, the Congress took into consideration the criminal act involving the murder of the policeman offering protection to a Guyanese immigrant who was a witness.[footnoteRef:11] Given that the Congress did not authorize restrictions, the Trump administration has failed to find legal support for its campaign to freeze the funding to those states that have adopted the sanctuary status. [11: Bier David. Should Sanctuary Cities Receive Federal Funding? Inside Sources (2018).]

Some observers contend that even if the law had allowed such restrictions, it would have been imprudent to do this. This is because such a move would undermine federalism, which is based on the idea that the localities are free to develop their policies, and implement them. Considering the above stated, reference to the case, Obamacare case, NFIB v. Sebelius comes to mind. In the above case, the court determined that the Congress lacked the constitutional basis to cut Medicaid to the states that failed to expand its coverage. Based on the outcome, it is clear that the enforcement of such a move by the federal government posed a threat to political accountability within the system.

According to 8 U.S.C. Section 1373, “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Ideally, the law states that, under no circumstances, can the federal government or any other state organ restrict the sending or reception of information on the status of citizenship of any individual.

In the determination of the case involving the City of Chicago and Sessions (the AG), Judge Leinenweber noted that the statute on Byrne grants required conformity with Section 1373. However, Byrne concluded that the section was a requirement for the grant since the authorizing statute indicated that it was imperative to comply with provisions and other relevant laws. Based on the argument by the Justice Department, “all other applicable laws” are those regulations that govern the jurisdictions of the recipient states. However, Chicago posed that the applicable laws were those that were specific to the grants. Surprisingly, the judge considered that both arguments were plausible.

Referring to longstanding Supreme Court determinations shows that the federal government should not attach conditions to grants. The only exception to this is when the conditions are stated in unambiguous terms such that the states can decide either to accept or to decline the funds. Further, the Supreme Court has set a precedent on spending. In this regard, reference is made to the Spending Clause that demands that the conditions on grants be tied to the federal purpose for which the grants were founded. Based on the term ‘related’, possibilities concerning divergent interpretations abound. However, if the grants are conditioned upon conformity with federal law regulating cities and states, some of the requirements will, definitely, be unrelated to the enforcement purpose for which the Byrne grants were established to improve. Taking the interpretation of “applicable” by Sessions and Judge Leineweber, it is evident that the latter part of the decree is unconstitutional.

Considering the above angle in the interpretation of the law goes against well-established norms that the federal courts should avoid. Such an approach that renders the laws unconstitutional poses unanticipated ramifications for the legal fraternity. In this regard, one should refer to and consider the opinion of Chief Justice John Roberts on the NFIB v. Sebelius (2012) case by observing that the Obamacare health insurance was a tax. In essence, the courts are required to make extreme exceptions, as a part of the efforts to save the statutes from being declared unconstitutional. On this basis, the decision on the case involving Chicago on the term applicable raises concerns.

Antithesis

The President of the United States enjoys legal backing to deny states or local authorities the right to benefit from federal grants. From the case (Philadelphia v. AG), it is evident that the federal government has the authority to impose restrictions on the grants that it issues to state governments. Based on the ruling, non-compliance, whether substantial or otherwise, provides sufficient grounds for denying state or local governments federal grants. Hence, the Department of Justice (DOJ) was justified in its refusal to give some states the Byrne JAG grants. It also emerged that the city did not spend any money from the FY 2017 Byrne JAG grants. On this basis, the city lacked any grounds to lodge a complaint that it would suffer harm if it were delisted from the recipients of the project. Hence, the court emphasizes that the theory of harm advanced by the city fails the plausibility test.

Varied opinions have emerged from the courts. Whereas, many of the rulings have supported the idea that the executive cannot deny funding to sanctuary states, William Orick, a US District judge, refused to compel the government to release up to one million dollars withheld from California.[footnoteRef:12] The judge based his decision on the fact that the case concerning the grants was still ongoing, and it remained unclear, which side the ruling would support. [12: Christophi Hellen. Judge Denies $1 Million Funding in Sanctuary Cities Case. Courthouse News Service (2018).]

Synthesis

From the above, it is obvious that the attempt to coerce the states into submission goes against the American government’s basis, which is grounded on the principle of separation of the states and the federal policies. If a change has to be introduced, the alteration should not be seen as an intrusion attempt by the federal government. Although the conservatives would favor the policy where the federal government imposes its way, there is a need to look back. For instance, according to the records, a liberal Congress sought to force local sheriffs to enforce gun laws, by passing legislation. The law was, however, overturned by the Supreme Court. This underscores the essence of autonomy between the two tiers of government. Hence, the idea that the threat by illegal immigrants is grave, and should facilitate the suspension of the law is misplaced.

Enforcement of the Executive Orders

Thesis

Through the authority of the executive branch, the President of the United States enjoys the constitutional power to ensure that state and local governments abide by the executive orders as well as standing federal regulations concerning the deportation of illegal immigrants. The creators of the Constitution of the United States recognized the importance of keeping power in check[footnoteRef:13], so executive orders issued by the President are enforceable. [13: Julien Boudon, The Separation of Powers in the United States, 4 Pouvoirs, (2016).]

Executive orders are viewed on the same basis as the federal ones. Looking at a number of landmark cases in the history of the USA reveals the state of power that the executive orders have. However, the same history highlights that the executive orders are not final. For instance, the nullification of an order by Harry Truman is a case in point. Reviewing the executive order by Trump on Obamacare is also helpful in as far as the understanding of the orders is concerned. In particular, the order sought to reduce any unwarranted regulatory or economic burden resulting from the Affordable Care Act, and going a step further to accord the states additional control over and flexibility in the creation of the healthcare market.[footnoteRef:14] [14: Somin Ilya. Federal Court Rules against Part of Trump Plan to Deny Funds to Sanctuary Cities, The Washington Post (2017).]

Antithesis

The President of the United States is limited constitutionally in ensuring that state and local governments abide by the executive orders. In case when an executive order is not based on law, its enforceability is thrown into doubt. Consequently, the US President would face problems in having such orders implemented. The constitutional grounds for the executive orders lie on the immense powers due to the executive. The US Constitution makes the orders a grey area since it is silent on their issuance or nature. However, under Article II of the Constitution, the President has a range of different powers. For instance, the US President is the commander-in-chief of the US armed forces and can issue decrees. Although the Congress has the power to pass legislation that might override executive orders, clearly, the President enjoys veto powers over the congregational proceedings. Just like in the case of Truman, Lincoln also faced a similar fate. Justice Roger Taney, a Supreme Court judge, concluded that the order was unconstitutional.[footnoteRef:15] The decision, known as Ex Parte Merryman did not yield a positive result since surprisingly, the President, as well as the Congress ignored the ruling. [15: Somin Ilya. Federal Court Rules against Part of Trump Plan to Deny Funds to Sanctuary Cities, The Washington Post (2017).]

A recent order by the Trump administration involved the suspension of grants to those cities and states that have declared the sanctuary status. The case filed by Santa Clara and San Francisco from the state of California proceeded up to the 9th US Circuit Court of Appeals, which rendered its decision by a 2:1 ratio that Trump erred in law. In other words, the executive order was unconstitutional. The court was unequivocally clear; and it inferred that only the Congress had powers over spending in the country. This is yet another case that demonstrates that the executive orders have to be constitutional for them to be effective.

Synthesis

The constitutional or legal basis of executive orders is uncontested. Article II; Section 1 directly vests executive powers in the presidency. Under Section 3 of the same Article, the President should ensure that the laws are implemented faithfully. Such powers accord the presidency broad powers and discretion to influence legal issues. In addition, executive powers hold a legal ground based on the power delegated by the Congress to the presidency. Although the overall idea is that the executive orders have a legal basis, their use should be tempered with caution and reason. If done procedurally, executive orders have the same weight as the federal ones, and must be obeyed by each citizen of the country. In cases the laws are viewed as un-procedural or illegal, like in the most recent order where the Trump administration sought to suspend grants to the sanctuary states, the courts can make pronouncements leading to their nullification.

Conclusion

The management of state affairs is complex. Within the United States, the Constitution underscores the doctrine of separation of power such that each division of the government must confine itself to its province of operation. Therefore, the federal government can only influence state governments in handling various issues so long as the law is followed. Clearly, the sanctuary status has attracted controversies within the legal fraternity of the country. Based on the paper, local and state governments cannot declare the sanctuary status for the aliens, and proceed to reject cooperation with the federal government on law enforcement. In addition, it is established that the President of the United States lacks legal backing to deny sanctuary jurisdictions grants. Further, the state governments are required to adhere to executive orders if they have a legal basis.